Monday, September 10, 2018

How Retirement of Baby Boomer Business Owners Will Affect Employees

The Washington Post recently published an interesting article considering the implications of retirement of business owners on employees. What a ‘silver tsunami’ of retiring Baby Boomer business owners could mean for their workers  focuses on the implication of "the wave of retiring Boomers who own closely held private businesses. They will need to sell their companies, transition them to a new generation of owners -- or risk shutting them down, cutting jobs in the process."

The article looks at "a little noticed measure in the recently signed defense spending bill aims to address the widening wealth divide between workers and the owners or top executives who manage them. The measure, co-sponsored by Sen. Kirsten Gillibrand (D-N.Y.), is intended to expand financing options and raise awareness for programs that can help employees become partial owners of the companies where they work" which "make[s] it possible for firms to use Small Business Administration loans to finance what’s known as employee stock ownership plans, or ESOPs, an arrangement that can help transfer ownership of the company to employees rather than have to find a suitable buyer or rely on family members who may be ill-suited or unprepared to keep the lights on."

According to one expert, this change is a big deal, although the "immediate impact is probably limited to small companies: The SBA loans that can be used are capped at $5 million, though they can be combined with other financing." 

Stay tuned!

September 10, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other | Permalink

Even in Paradise: An Accusation of Elder Exploitation

Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.   

The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.

 

 Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.

 

A key court hearing in a legal fight over the trust is scheduled for Monday.

 

Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.

 

As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.

 

Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.

For more, read Foundation Board: Protect Hawaiian Heiress' Millions. 

While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger.  Another article describes Ms. Worth as a "longtime caregiver."  See A Cautionary Story of Elder Financial Abuse.  Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice.  See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.

September 10, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 9, 2018

ECHO MOLST

i was reading about ECHO MOLST the other day. ECHO MOLST is part of Project ECHO

a lifelong learning and guided practice model that revolutionizes medical education and exponentially increases workforce capacity to provide best-practice specialty care and reduce health disparities. The heart of the ECHO model™ is its hub-and-spoke knowledge-sharing networks, led by expert teams who use multi-point videoconferencing to conduct virtual clinics with community providers. In this way, primary care doctors, nurses, and other clinicians learn to provide excellent specialty care to patients in their own communities using an all-teach all-learn model.

Project ECHO links expert specialist teams at a “hub” with primary care clinicians and other professionals in local communities. Primary care clinicians, the “spokes” in the ECHO model, become part of a learning community, where they receive mentoring and feedback from specialists. Together, they manage patient cases so that patients get the care they need. Although the ECHO model makes use of telecommunications technology, it is different from telemedicine.

What makes this training unique?  According to the website, "Project ECHO’s innovative approach will support the current and future needs of our clinicians and system leaders. ECHO MOLST will provide long term, sustainable MOLST education that will improve the competency and capacity of clinicians and improve adherence to patient preferences at end-of-life." The video conference 8 week training is set to start on September 13, 2018 .

September 9, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink

Friday, September 7, 2018

LTCI: Evaluating Group versus Individual Policies

As recent readers of our Elder Law Prof Blog will know,  at Dickinson Law this semester I'm offering a unit on long-term care financing that is taking a hard look at long-term care insurance.  Thus, it was great to receive a recent email from a reader, Samantha Stein, sharing her timely report for the Association for Long Term Care Planning on "Group Long Term Care Insurance vs. Individual Policy: Which Is Better?" 

This should interest people beyond my student group!  

For example, Samantha explains who sells each type of product, and how to look for reviews and ratings of companies offering products.  

Thanks, Samantha! 

September 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0)

Thursday, September 6, 2018

Is There Such a Thing As Rational Suicide?

The New York Times ran an article,  A Debate Over ‘Rational Suicide’.    What is a rational suicide? And how is it different than physician-aided dying?  

Is suicide by older adults ever a rational choice? It’s a topic many older people discuss among themselves, quietly or loudly — and one that physicians increasingly encounter, too. Yet most have scant training or experience in how to respond, said Dr. Meera Balasubramaniam, a geriatric psychiatrist at the New York University School of Medicine.

She has written on the topic with a colleague, in an attempt "to generate more medical discussion,... in a 2017 anthology, “Rational Suicide in the Elderly,” and she revisited it recently in an article in the Journal of the American Geriatrics Society." The Hastings Center has also weighed in on the issue with the current Hastings Center Report with "a debate over “voluntary death” to forestall dementia."

The article acknowledges that suicide is an important public health issue that also includes older adults. The article explains the issues on both sides of this debate. For example, 

Failing to take action to prevent suicide, some ethicists and clinicians argue, reflects an ageist assumption — one older people themselves aren’t immune to — that the lives of old or disabled people lack value.

A tolerant approach also overlooks the fact that people often change their minds, declaring certain conditions unendurable in the abstract but choosing to live if when the worst actually happens. 

Slippery-slope arguments factor into the debate, too. “We worry that we could shift from a right to die to a duty to die if we make suicide seem desirable or justifiable,” Dr. Balasubramaniam said.

The article explores some of the research regarding suicide and features some quotes from individuals in addition to experts.

September 6, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink

How Many Long-Term Care Insurance Companies are Still Writing New Policies?

A recent post on The Motley Fool provided several key statistics regarding Long-Term Care Insurance, including the fact that the number of companies still writing traditional LTCI policies in the U.S. has fallen dramatically:  

According to a report by the NAIC, the number of insurers offering stand-alone long-term care policies (as opposed to ones bundled with some other product(s) such as annuities) dropped from 125 to 15 between 2000 and 2014. That will only surprise those who haven't been keeping up with the industry, which has been struggling.

 

What's the problem? Well, as noted in the previous statistic, long-term care is simply very costly, and healthcare costs in general are quite steep -- they have been increasing at rapid rates, too. Some insurers have had to hike the premiums they charge their policy holders, while others have just stopped offering long-term care policies. Genworth Financial, for example, recently announced a 58% rate hike, while Mass Mutual requested a 77% rate hike.

 

This information shouldn't necessarily stop you from seeking coverage, but do know that the industry has been in some turmoil, and approach it with your eyes open.

For additional statistics (and resources) read Five Long-Term Care Stats that Will Blow You Away,

 

September 6, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, Retirement | Permalink | Comments (0)

Wednesday, September 5, 2018

Rituals for the Death of Residents in LTC Facilities

When a resident of a long term care facility dies, should that person's passing be marked in some way?  According to a recent article in Kaiser Health News, Creating Rituals To Honor The Dead At Long-Term-Care Facilities one expert says the answer to that question is yes. This expert 

wants to see bereavement openly acknowledged at facilities throughout Georgia to end what she calls “the silence surrounding loss and death in long-term care.” Following in-depth discussions with more than 70 staffers, residents and family members at nine facilities in central Georgia, she has created two handbooks on “best practices in bereavement care” and is gearing up to offer educational seminars and staff training in dozens of nursing homes and assisted living residences across the state.

As the article explains, "[f]raught reactions to loss and death are common among nursing assistants and other staff in long-term-care facilities, research shows. When feelings aren’t acknowledged, grief can go underground and lead to a host of physical and psychological symptoms, including depression, distancing and burnout." The article offers several stories as well as some best practices. Some of those "best practices include offering support to grieving residents and relatives of the deceased, recognizing residents’ bereavement needs in care plans, and having a protocol to prepare bodies for final viewing." Others develop unique acknowledgements of a resident's death, including the use of candles, balloon releases and other activities..

September 5, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink

Tuesday, September 4, 2018

Podcast about Brooke Astor Case

Thanks to Julie Kitzmiller for sending me the link to a podcast at AARP on the Brooke Astor case.   Brooke Astor: Famous Socialite Robbed is one in a series (this one is #18) of podcasts on "the Perfect Scam".   The podcast runs about 25 minutes. Here's a description:

A prominent philanthropist and the epicenter of the New York society scene, Brooke Astor lived a tumultuous but glamourous life. Left a fortune by her third husband, Vincent Astor, Brooke planned to live out her later years at her country estate. But when Brooke’s son refuses to let her do so, then sells his mother’s favorite painting (worth over $30 million), grandson Philip decides to step in. Philip’s efforts to return his grandmother to the country home she loved would uncover one of the most prominent cases of financial elder abuse in U.S. history, with millions lost and a family torn apart.

A time-coded transcript accompanies the podcast and is available here.

 

September 4, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink

Friday, August 31, 2018

How Should Non-Wage Compensation of Live-In Caregivers Be Analyzed for Fairness?

Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers.   They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers.   Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.

From the abstract:   

In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.

For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.  

August 31, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, International, Property Management, State Cases | Permalink | Comments (0)

Thursday, August 30, 2018

Rep Payee Reviews

Recently I was reading the SSA website on Rep Payees and learned that certain rep payees have an accounting/auditing requirement.  Representative Payee Site Reviews Conducted By Protection And Advocacy System explains 

On April 13, the President signed the Strengthening Protections for Social Security Beneficiaries Act of 2018. The law directs state Protection & Advocacy (P&A) system organizations to conduct all periodic onsite reviews along with additional discretionary reviews. In addition, the P&As will conduct educational visits and conduct reviews based on allegations they receive of payee misconduct.

The P&A conducts a review, which includes:

  • an interview with the individual or organizational representative payee;
  • a review of the representative payee’s financial records for the requested beneficiary or sample of beneficiaries served;
  • a home visit and interview for each beneficiary included in the review; and
  • an interview with legal guardians and third parties, when applicable.

Financial Records Representative Payees Should Have Available for Review

When the P&A schedules the review, the reviewer will request the records needed for each beneficiary. Some common financial documents that representative payees may be asked to provide are:

  • a beneficiary budget;
  • a beneficiary ledger;
  • individual bank statements;
  • Collective account bank statements;
  • receipts of income;
  • account balances;
  • bank reconciliation records;
  • cancelled checks;
  • expense documentation including receipts, bills, and rental agreements;
  • how the payee keeps conserved benefits (e.g., checking, savings, etc.); and
  • any other financial documents that pertain to a beneficiary’s Social Security and/or SSI benefits.

As part of the review the P&A also visits the beneficiary as well as any guardian or any "third parties." Anyone have any experience with these "audits"?

August 30, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security | Permalink | Comments (0)

An Interesting Case About Effectiveness of Arbitration Agreements in LTC Settings

In my 1L Contracts course, I often discuss binding arbitration agreements, including those used as part of a package of admission documents in long-term care settings. I find that students tend to approach the subject from strong personal viewpoints.  Some express their assumptions that  arbitration is faster and less expensive than court-based litigation.  Others, upon hearing the possible costs of arbitration and the rights that may be waived as a result of signing these agreements without careful thought or legal advice, ask whether they are "void" as unconscionable.  We discuss the history of litigation in the nursing home realm, which has made the latter "contract law" challenge to be mostly unavailing.  

On Tuesday, I sat in on an interesting "arbitration" discussion in an upper division Business Entities course that began with a unit on the law of agency. The springboard was the Pennsylvania Superior Court case of Wisler v. Manor Care of Lancaster, decided in September 2015.   In the case history, the son had helped his father be admitted to a care facility for rehabilitation following a health crisis.  The son signed the paperwork for his father, including an Arbitration Agreement.  The son advised the facility he had a POA for his father, but the facility "did not obtain a copy of the power of attorney, nor could [the son] produce a copy at the time of his deposition."  These facts became important after the family brought a personal injury suit against the facility; the defendant sought to compel arbitration.  

The appellate court addressed this fact pattern as one of validity of an agency relationship between the son and father. The court concluded that without a written document or other evidence to establish the scope of authority granted to the agent, the alleged arbitration document signed only by the son was invalid to compel arbitration.   The court found there was inadequate evidence of express, implied, or apparent  authority for the son to waive his father's rights to a court-based trial, including any jury.  Further, based on the facts, the court found no grounds to conclude the son had "authority by estoppel." 

The court concludes that it is up to nursing homes to seek appropriate confirmation of the agent's authority.  Reliance on oral representations was at their peril.  "If a third party relies on an agent's authority, it must ascertain the scope of that authority at the time of reliance. . . . In other words, our decision should encourage parties seeking an agreement to arbitrate to ascertain the source of an agent's authority before allowing the agent to sign an arbitration agreement on the principal's behalf."   

Perhaps the most interesting part of the class was the fact that the author of the appellate opinion, Pennsylvania Superior Court Judge Victor Stabile, was the guest lecturer for the discussion.  He brought to bear not just his judicial experience but his commercial litigation experience to enliven the discussion.  My thanks to Dickinson Law Professor Samantha Prince for inviting me to sit in on the interesting class. 

August 30, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, State Cases | Permalink | Comments (0)

Wednesday, August 29, 2018

Reforming Social Security - Child Caregiver Credits?

The Center for Retirement Research at Boston College has released an issue brief, #18-15, Modernizing Social Security: Caregiver Credits.  The brief opens with the statement of the problem

Women still tend to work fewer years and earn less than men, which leads to less income in retirement. One reason is that women are often still the main family caregiver. Traditionally, Social Security has recognized this role by providing spousal and widow benefits for married women. Today, however, many women are not eligible for these benefits because they never married or they divorced prior to the 10-year threshold needed to qualify. Even those who are married are less likely to receive a spousal benefit, as their worker benefit is larger. Thus, many mothers receive little to no support to offset lost earnings due to childrearing.

The 10 page brief looks at how the topic is handled in other countries and discusses two avenues for resolution in the U.S.: (1) "[i]ncrease the number of work years that are excluded from benefit calculations ... [and] (2) [p]rovide earnings credits to parents with a child under age six for up to five years." The article concludes in part

It is easy to understand the appeal of crediting Social Security records to reflect lost earnings due to caring for a child. In the past, this activity was usually compensated for by the spousal benefit, but changes in women’s work and marriage patterns have left fewer eligible for it. A credit is also more appealing than a spousal benefit if the goal is to compensate for the
costs of childrearing, independent of marital status.

August 29, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, Social Security | Permalink

Giving Caregivers (and Law Students!) an Opportunity to See Life through the Eyes of A Person with Dementia

Relias Learning developed an educational tool to promote empathy for individuals with dementia, in the form of a a video shot from the perspective of "Henry," a care facility resident. 

Originally intended to help in training professionals, in June 2018 Relias released a version to the general public free of any charges.  A second Virtual Reality version, is available for a modest price of $10.  There are lots of good points for class discussion in the free on-line version of a Day in the Life of Henry, available here.

August 29, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Web/Tech | Permalink | Comments (0)

Tuesday, August 28, 2018

More on Family Caregivers

On several occasions I've written about the issues of caregivers (the shortage of family caregivers, the financial impact on care giving) so i was interested in this article by Kaiser Health News,    A Late-Life Surprise: Taking Care Of Frail, Aging Parents notes the failure of adult children to plan for their roles of caregivers-a role that may last a number of years and even cause the adult child to stop working. The KHN story focuses the profile of a "typical family caregiver, "“When we think of an adult child caring for a parent, what comes to mind is a woman in her late 40s or early 50s,” said Lynn Friss Feinberg, senior strategic policy adviser for AARP’s Public Policy Institute. “But it’s now common for people 20 years older than that to be caring for a parent in their 90s or older.”  The story cites a new study from "the Center for Retirement Research at Boston College [which] is the first to document how often this happens. It found that 10 percent of adults ages 60 to 69 whose parents are alive serve as caregivers, as do 12 percent of adults age 70 and older."

The study shows that "about 17 percent of adult children care for their parents at some point in their lives, and the likelihood of doing so rises with age ... because parents who’ve reached their 80s, 90s or higher are more likely to have chronic illnesses and related disabilities and to require assistance, said Alice Zulkarnain, co-author of the study."

So consider the implications, some of which I mentioned in the above parenthetical in the opening sentence.  The article lists the physical wear and tear "on older [caregiver] bodies, which are more vulnerable and less able to recover from physical strain" the potential for psychological stressors which can exacerbate any health issues the older caregiver may have, and social isolation of caregivers.  There's also the financial toll that may come, with "hard-earned savings at risk with no possibility of replacing them by re-entering the workforce."  

The article mentions a number of caregiver resources.  The report from the Center for Retirement Research is available here.

August 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, Other, Statistics | Permalink

When Family Members Disagree about Care Arrangements....

While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements.  High profile examples of how this can arise often involve celebrities.  The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment."  From People magazine's online site comes this sad report:  

The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.

Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”

Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)

Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”

Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue.   My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog. 

August 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Monday, August 27, 2018

Micro-chipping Grandma?

The title is somewhat tongue in cheek (I use the phrase in my class to be provocative) but it was only a matter of time until the potential of a micro-chip for elders was becoming a reality. This firm already microchips employees. Could your ailing relative be next? in the Washington Post, explains that a firm that already microchips employees is looking to develop "a more sophisticated microchip that is powered by human body heat and includes GPS tracking capabilities and voice activation [and]... [they] acknowledge that the chips will offer a convenient way to track people — especially those suffering from Alzheimer’s and dementia."  The chip the company has in mind will do more than just track whereabouts, according to the article. It will have a medical component that will track the wearer's vitals and notify the wearer's doctor if something is amiss. These "medical microchips" have proponents as well as detractors as the article explains.

The article offers that only about half of the company's employees opted for the microchip, and there are other companies using the technology with humans. One expert thinks using microchips with humans is going to be a done-deal, but not for a few decades.  I'm all for the use of tech, but worry about privacy, informed consent and cyber security issues.  Although it requires a chip to be inserted into the body, is it any less invasive than cameras or technology monitoring devices such as those used in a medical cottage or a gps tracker in a cane or shoes? I still hold out hope for privacy....even though it may be eroding.

August 27, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Web/Tech | Permalink | Comments (0)

New Jersey Governor Signs New Law Helping CCRC Residents Get More Timely Refunds of "Refundable" Fees

Back in April, I posted here about legislation pending in New Jersey, inspired in part by litigation.   Residents of Continuing Care Retirement Communities  in New Jersey were advocating for mandatory limits on how long a CCRC could hold "refundable" entrance fees after the death or departure of a resident from a facility.  New Jersey CCRC residents are well-organized and they have earned the ear of legislators.  Final passage on an amended version of  Assembly Bills 2747/880 occurred on July 1.

On August 17, 2018, New Jersey Governor Phil Murphy signed Public Law 2018, c.98 into law.   The old New Jersey Law required CCRCs to repay refundable fees, but the refunds were not mandated until 60 days of "the unit" being resold.   Data collected by residents and disclosed during litigation revealed that some facilities were  holding refundable fees for more than a year after the vacating of the particular unit, while marketing and selling "other" units first.  In essence, the companies preferred to sell new units or other units unencumbered by a refund obligation, to maximize their income and asset picture. 

The new law creates a preference list for the 60-day refunds, a type of "first out, first repaid" system.  Key language of the new law provides:

"In the case of a continuing care agreement that provides for a refundable entrance fee, the facility shall assign the vacated unit a sequential 'refund' number among all available units with refundable entrance fees.  Any balance [due on refundable fees] shall be payable based on the sequential 'refund' number assigned to the unit. . . . "

A compromise among facility owners and residents in the drafting of the legislation permits a facility to apply to the New Jersey regulatory body for CCRCs for permission to use an alternative methodology for making refunds, but "approval shall not be granted unless the facility can demonstrate that the use of the alternative methodology is resident-focused and provides for a more equitable and timely payment of refundable fees." 

This final language appears to be more resident-friendly than an earlier proposed exception, which would have expressly recognized the possibility of conditioning refunds on the resale of "similar" units.   Resident councils will probably need to be careful to review any alternative proposals submitted by their own CCRCs.

The act takes effect in 90 days from date of enactment.   For more on the history of the legislation, see Signed: Bateman Law to Stop Retirement Communities From Taking Advantage of Seniors and Surviving Estate Holders

Current residents did not get a clear win, as the new rules for refunds are mandatory only for CCRC agreements entered into on or after the effective date of the new law.  Nonetheless, congratulations to CCRCs and residents in New Jersey on making changes that better respect the expectations of customers and their families about the use of funds that function, in essence,  as an interest fee loan to the CCRC during the residents' tenure in the facilities.  

August 27, 2018 in Consumer Information, Current Affairs, Ethical Issues, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Sunday, August 26, 2018

A Different Approach to Dementia in the Netherlands

The New York Times reported recently on some innovations in The Netherlands, in  Take a Look at These Unusual Strategies for Fighting Dementia. It opens describing a virtual bus ride "simulation that plays out several times a day on three video screens" and moves into explaining that this virtual bus trip "is part of an unorthodox approach to dementia treatment that doctors and caregivers across the Netherlands have been pioneering: harnessing the power of relaxation, childhood memories, sensory aids, soothing music, family structure and other tools to heal, calm and nurture the residents, rather than relying on the old prescription of bed rest, medication and, in some cases, physical restraints." Another recreates a trip to the beach, both of which can spur conversations about previous trips.

The Netherlands has a preference for paying for care in the home rather than in facilities.  I've previously blogged about one facility in The Netherlands (De Hogeweyk). In The Netherlands, "facilities, which are privately run but publicly funded, are generally reserved for people in an advanced state of the disease."  One component of the Dutch approach is the physical surroundings designed to create a certain era or location. Another is creating small households of residents.

The article is accompanied by a number of great photos of involved residents. I plan to ask my students to discuss whether the Dutch model would work here in the U.S. What do you think?

August 26, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, International | Permalink | Comments (0)

Friday, August 24, 2018

Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?

A number of years ago,  a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman.  This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere.  Didn't the father have a right to be a fool in love? 

We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age. 

When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed.  For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story),  with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them.  In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos

When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older.  Or,  we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."

These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood.   I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.

At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.

Continue reading

August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, August 23, 2018

Is Calling a 71-Year-Old Victim of a Violent Crime "Elderly" an Example of Ageism?

A column from the Manteca/Ripon [California] Bulletin on "The Impact of 'Elderly' & Other English Words," offers interesting perspectives on labels, especially in a time where high-profile name calling seems calculated to cause wide offense.  But what about more casual uses of labels?   

The column by Dennis Wyatt was sparked by news coverage about a vicious attack on a 71-year-old Sikh man in California's Bay Area.  Several of the coverage items referred to the victim as "elderly."  

In response to reader criticism of the label, Wyatt explains his perspective:  

Words can and do conjure up specific and different reactions and images with various people. Besides government definitions, laws and terminology that place people 65 and older under the umbrella of elder law there are other factors at play with language whether it is current trends, regional or cultural influences, or generational.

 

In the case of the vicious attack on the 71-year-old that those who knew him described him as frail and elderly, the word “elderly” confers the fact he’s not a “strapping” 71-year-old. I know of a few guys in their early 70s that the suspect in Monday’s attack would not have messed with. Not because they were simply healthier and would fight back but because they could have probably cleaned his clock.

 

The word “elderly” conveyed the correct image. The man was a vulnerable target and I’d venture to say the cowards that attacked him determined that to be the case. 

I do agree with [one reader's] observation that simply being 71 years old doesn’t make one elderly. At 62 I don’t feel old at all. In fact I can make a solid case I’m “younger” today in terms of health and what I can do physically than when I was 18.

In my elder law class, I sometimes begin the semester by asking students to give a definition of "elderly."  The results are often interesting.  

August 23, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues | Permalink | Comments (0)